Sweat Works and the DMCA

In intellectual property law there are a few grey areas that aren't well protected. Clothing, magic, and so called "sweat works" are not as well protected by the law as things like inventions, trade secrets, and copyrights. That's not to say that they aren't afforded any protection, but they are afforded less.

Sweat works are collections of facts. A good example is the yellow pages. If someone dropped the yellow pages on my front steps, I could go through, copy every name, address, and number out of the book and publish my own tomorrow. Since you can't copyright facts, I haven't infringed their copyright.

Now, trade secret law can protect some of these so called "sweat works" (they are called this because they take a lot of labor to create, but aren't original, which is a requirement for copyright), however, it requires that the information in these works remains secret. A common example is a customer list.

Follett is the nation's largest seller of textbooks. They have, on their website, a large databse of college courses and the required textbooks for those classes. A company called Ugenie took that list off of the Follett website and put it on their own with links to lower prices than the ones Follett offered.

Follett is alleging that Ugenie violated the Digital Millennium Copyright Act and Follett's terms of service when Ugenie sicced its bots on the Follett website. Now, the Intellectual Property Clause (Art. 1, Section 8, Clause 8) doesn't protect sweat works of any kind. But the DMCA may have been, at least in part, enacted under Congress' commerce clause powers. If this is the case, the DMCA may provide protection for sweat works unavailable under the IPC.

As for the violation of the terms of service claim, without more research I can't tell if there was a contract. At first blush it seems like there was no consideration. Follett wasn't getting anything in exchange for the information it was providing the users, so they may not be able to be bound by a contract of any kind. Again, I'm missing too much information to make an accurate determination of any kind here.